Supreme Court quashes 2021 order on ex post facto environmental clearances, but upholds Centre’s power to provide ‘amnesty schemes’

The Supreme Court's landmark judgment quashing the 2021 Office Memorandum (OM) on ex post facto environmental clearances marks a pivotal moment in India's environmental jurisprudence. To understand the gravity of this ruling, we must first trace the background. The 2021 OM, issued by the Ministry of Environment, Forest and Climate Change (MoEFCC) on January 12, 2021, allowed projects that had commenced operations without prior environmental clearance (EC) to apply for clearance retrospectively — a practice known as ex post facto clearance. This was not the first such attempt; a similar 2017 notification was struck down by the National Green Tribunal (NGT) in 2020 (Aman v. Union of India), which held that the Environment (Protection) Act, 1986 (EPA) does not permit retrospective regularization. The 2021 OM was essentially a reincarnation of that invalidated policy, prompting fresh litigation. The key stakeholders include the Union Government (MoEFCC), project proponents (industries, infrastructure developers), environmental activists, affected communities, and the judiciary. The Centre argued that such amnesty schemes were necessary to regularize "brownfield" projects and avoid economic disruption. However, petitioners, including environmental NGOs and activists, contended that ex post facto clearances violate the precautionary principle — a cornerstone of environmental law recognized in Vellore Citizens Welfare Forum v. Union of India (1996) — and undermine the mandatory prior EC requirement under the EIA Notification, 2006 issued under Section 3 of the EPA. The three-judge Bench led by Chief Justice D.Y. Chandrachud, with Justices J.B. Pardiwala and Manoj Misra, delivered a nuanced verdict. The Court held that the 2021 OM was ultra vires the EPA because it bypassed the statutory framework — only Parliament, not the executive, can amend the requirement for prior EC. The Court affirmed that the Centre retains legislative power to enact amnesty laws for past violations through proper legislative process (under Article 245 and Entry 13 of List I, Union List), but cannot use administrative orders to circumvent the law. Crucially, the judgment applies prospectively — projects that obtained clearances under the 2021 OM will not be disturbed, balancing environmental accountability with economic stability. This ruling has profound significance for India. Constitutionally, it reinforces Article 21 (right to life, including a clean environment), Article 48A (State's duty to protect environment), and Article 51A(g) (fundamental duty of citizens). It strengthens the doctrine of separation of powers by checking executive overreach. Economically, it signals that regulatory certainty cannot be sacrificed for short-term project clearance — boosting investor confidence in rule-of-law compliance. Socially, it empowers communities affected by unauthorized projects. Internationally, it aligns India with the Rio Declaration (1992) and its commitments under the Paris Agreement. Future implications are far-reaching. The MoEFCC must now pursue any amnesty scheme through a Parliamentary amendment to the EPA or a new law — subject to judicial review. The NGT's role as a specialist environmental tribunal is reinforced. Project proponents will be compelled to comply with the EIA process upfront. The judgment may also influence upcoming amendments to the EIA Notification, 2006, and the proposed Environment Management Act. Ultimately, this verdict reaffirms that sustainable development in India must walk hand-in-hand with constitutional environmentalism — not bypass it through executive fiat.